Can I Get a Witness? Maybe You Should Ask That More Often: eDiscovery Best Practices

The use of expert witnesses to help juries understand complex facts of the case is common, and an expert’s testimony can make or break your case. When it comes to eDiscovery and digital forensics best practices and expert witnesses, this recent article from Forensic Discovery discusses why you may want to consider asking the question “Can I get a witness?” more often.

Their article You Should Consider Asking “Can I Get a Witness?” More Often begins by reminding us that Federal Rules of Evidence (FRE) Rule 702 governs the use of expert witnesses in Federal cases. It says:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

  • the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  • the testimony is based on sufficient facts or data;
  • the testimony is the product of reliable principles and methods; and
  • the expert has reliably applied the principles and methods to the facts of the case.

As they note, the handling of electronic evidence in discovery is subject to “reliable principles and methods” and the use of experts to provide affidavits, declarations or testimony can be very important to defend your eDiscovery and digital forensics practices or authenticate the evidence you’re producing and using in the case. It can also be important to assess your opponent’s eDiscovery preservation and collection practices (in an effort to obtain sanctions against them if they spoliated evidence) or validate (or refute) cost estimates for performing discovery in a case.

Forensic Discovery also discusses one notable case (which I covered earlier this year) where one party’s use of an expert witness led to a favorable ruling by the judge in that case, and they reference another example here in which they were directly involved. Check out their article here to find out more about that and also why I have a picture of Marvin Gaye on this post!

So, what do you think?  When do you use an expert witness to support your position in discovery disputes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclosure: Forensic Discovery is an Educational Partner and sponsor of eDiscovery Today

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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